Driving with Drugs present in Oral Fluid, Blood or Urine

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Overview

Driving with drugs in your system involves operating a vehicle while containing illegal substances like THC (found in cannabis), MDMA (found in 'ecstasy'), amphetamines, or cocaine.

Different from a DUI (driving under the influence) charge, it doesn't require proving impairment at the time of driving. It's sufficient to detect drugs in your system.

From 20 May 2019, the police can issue a penalty notice and impose a 3-month license suspension if you're caught driving with illegal substances, avoiding court.

A penalty notice follows a positive laboratory analysis after the initial roadside 'lick test'.

You can appeal this notice in the Local Court if: 1. You are not guilty, or 2. You plead guilty but are given a 'section 10 dismissal or conditional release order' (no conviction), avoiding penalties.

Frequently Asked Questions

Click on the options below to learn the answers to frequently asked questions about Driving with Drugs present in Oral Fluid, Blood or Urine.

To be convicted of driving with drugs present in oral fluid, blood or urine, the prosecution must prove:

1. You drove a motor vehicle, or
2. occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion, or
3. If the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupied the seat in a motor vehicle next to a learner driver who is driving the vehicle AND
4. There was the presence of prescribed illicit drugs in a person’s oral fluid, blood or urine.

Current mobile drug tests target the following illicit substances:

1. Active THC (found in cannabis)
2. Methylamphetamine (like speed and ice)
3. MDMA or ecstasy
4. Cocaine.

There are legitimate defences against drug driving charges, including:

1. Honest and reasonable mistake – where you genuinely lacked awareness of an illicit substance in your system while driving, and your belief was logical given the circumstances.
2. Necessity – if you drove to avoid serious danger.
3. Duress – If you drove due to threats or coercion, and the threat was significant and ongoing, and your reaction was reasonable.

Our experienced traffic defence lawyer can assess if the prosecution can prove the offence beyond a reasonable doubt. They can determine if a legal defence applies to your case.

If issues arise with the prosecution’s case, your lawyer can formally ask for the charge to be dropped. If the prosecution disagrees, they can argue for your acquittal in court, aiming for a not guilty verdict.

If you choose to plead guilty to drug driving charges, the potential penalties are as follows:

For a first offence of a ‘major traffic offence’ within the past 5 years:

1. An ‘automatic’ license disqualification of 6 months, which the Magistrate may reduce to a ‘minimum’ of 3 months.
2. A fine of up to $2,200.

For a second or subsequent ‘major traffic offence’ within the past 5 years:

1. An ‘automatic’ disqualification of 12 months, which the magistrate has the authority to potentially decrease to a minimum of 6 months.

2. A fine of up to $3,300.

However, you may avoid a criminal conviction, disqualification, or fine if the magistrate grants a Section 10(1)(A) Dismissal or a Conditional Release Order Without a Conviction.
To increase your chances of avoiding a criminal record or receiving a more lenient penalty, consider gathering character references and writing a letter of apology. Enrolling in a traffic offender program could also be beneficial.
An experienced traffic lawyer can guide you and those providing character references, ensuring their maximum effectiveness in court. They can recommend a suitable program if you choose to participate and meticulously prepare and present your case in court.